Friday, October 28, 2005

Countless numbers of boys and girls have been posting their Fitzmas wish lists online, inciting a frenzied obsession for one prize above all others. They woke up this morning to find in their stocking, instead of Tickle Me Elmo or a Cabbage Patch doll, a Pet Rock.

Yes, Virginia, Massachusetts, Vermont, Berkeley, San Francisco, and Hollywood – there is no Santa Claus.

Although special prosecutor Patrick Fitzgerald probably won enough Democratic followers today to lead a parade down Pennsylvania Avenue, it is not St. Patrick's Day, either. There are still too many snakes in the greater Washington, D.C. area, some of them – *cough* David Corn *cough* – asking questions today in the Department of Justice 7th Floor Conference Center.

1. We are a nation of laws and perjury subverts the enforcement of them. Public officials have a unique responsibility not only to obey laws but to model them. If I. Lewis “Scooter” Libby is guilty as charged, he has wronged his boss, Vice President Dick Cheney, his boss's boss, the President, and perhaps one or more reporters. Although Patrick Fitzgerald was tasked with determining whether the leak of Valerie Plame Wilson’s name and identity was a crime, he has not charged Libby nor anyone else with that crime. He is charging Libby with technical crimes that, if real, were a byproduct of the investigation. Hence, I call this the Case of the Crimeless Investigation.

2. Libby is acclaimed as an extremely bright man and successful lawyer between his stints in both Bush administrations. Testifying falsely while providing contradictory records is a bizarre allegation - and I am mindful that Fitzgerald's indictment is based on unproven allegations. Fitzgerald's certainty that Libby fabricated an elaborate backstory scapegoating reporters suggests he has solid evidence supporting testimony from Tim Russert, Matt Cooper and Judith Miller or else he has supreme confidence in his own instincts to deconstruct a "he said, he/she said." Did Libby assume that journalists would never reveal their sources? Might he have blabbed to one or more cooperating witnesses about his reporter alibi? Reconciling the accusations detailed today to his sterling reputation is perplexing. However, they are consistent with the infamous September 15, 2005 letter to Judith Miller, in which Libby may have attempted to influence her testimony. That letter already called into question Libby’s – and his attorney’s – legal smarts.

3. We still don’t know everything Patrick Fitzgerald knows. We don’t know much of anything that Scooter Libby knows. Libby may yet be exonerated or Fitzgerald vindicated. Until one or the other comes to pass, we are doomed to many more months or years of rampant speculation unfettered by facts, such as past predictions of 22 indictments of multiple officials that failed to materialize. The rigid, leak-averse discipline maintained by Fitzgerald and his team reminds me of Bush’s tight ship. Speaking of whom, the President's reputation for political ethics survives despite the best - or worst - efforts of left-wing wackos to draw moral equivalency between his administration and his predecessor's, between Scooter Libby and Slick Willy. Unlike the series of prosecutors investigating throughout the Clinton era, Fitzgerald was given prompt access to the President, Vice President and every other official he asked to interview, plus their documents. The only witnesses he was forced to subpoena were journalists. There was no administration conspiracy and no coordinated cover-up. Interestingly, that may be due in part to the context in which Libby was working the media back channels to expose Joseph Wilson's fraud. Libby has emerged as a loyalist countering CIA chicanery and defending the administration at a time when the President's team, beleaguered by CIA chicanery, was preparing to retreat from the controversial but accurate sixteen words he cited in his 2003 State of the Union address.

4. Fitzgerald, who held the most publicized press conference of his career, was as earnest and unpolished as a freshman at his first college debate. If Ken Starr was an unflappable Eagle Scout, as methodically decent and even-tempered as Ned Flanders, Patrick Fitzgerald is a semper fi Marine who gets emotional defending truth, justice and the American way. The results-driven left will praise him because he a) nabbed Libby and b) furnished sound bites in support of the CIA, their cynical crusade du jour. The principled right will respect his fidelity to law despite the fact that he nabbed Libby, the unlikely conservative hero.

5. Fitzgerald seemed tired but intense - and intensely conscious of his role on the national stage. He alternated between hard-selling his case against Libby, whom he acknowledged deserves the presumption of innocence, and advocacy in favor of protecting CIA confidentiality. Unfortunately, Fitzgerald appeared to be trying a political case against Libby in the court of public opinion based on his personal concerns about the CIA and not his actual counts against Libby. Fitzgerald belied his "put up or shut up" assertion that he would not discuss any information outside of the Libby indictment. He created the false impression that Libby has been charged with compromising Valerie Plame Wilson’s cover and harming national security, which he has not. As impassioned as Fitzgerald's rhetoric was regarding classified CIA information, I have to think he would have indicted him in a heartbeat if he could prove Libby violated the Espionage Act - and, of course, he did not. Watching, I wondered whether he was seeking to influence the jury pool and what Libby's new legal team could with this video clip.

6. On Monday, Fitzgerald’s investigators interviewed the Wilsons’ neighbors for the first time ever in the course of the investigation, which seemed very strange at this late date. When Fitzgerald cited those interviews as evidence of Plame’s CIA cover, I thought, “Oh, that’s why he did it. Not to conscientiously search for new, possibly exculpatory information, but to support the conclusion he already formed and give him a talking point.” If bass-ackwards is how he conducts his investigations and Libby buys himself some slick lawyering, this could be a real illuminating trial.

7. At some point in the investigation, perhaps when former Attorney General John Ashcroft felt compelled to recuse himself, the focus shifted from a violation of the Intelligence Identities Protection Act to Libby’s alleged perjury. What prolonged the investigation were delays as journalists sought to avoid testimony, at least partly to protect an assumed shield of journalistic confidentiality. From the indictment you could infer that Libby, not Fitzgerald, was to blame for the First Amendment showdown.

8. Libby’s alleged perjury, false statements and obstruction of justice should not have impaired Fitzgerald’s ability to determine the exact level of covertness the CIA assigned to Plame at the time of Novak's leak. Unless the CIA did not cooperate, Fitzgerald should have retrieved the damage assessment report issued after the leak early in his investigation. Clearly, her compromised status was not sufficiently covert to warrant an indictment or there would have been one. Otherwise, he would not have referred repeatedly to her status as classified instead of covert. Either way, he didn’t get any indictments under the Intelligence Identities Protection Act or the Espionage Act – and we don’t know if he even tried. I am happy to welcome the return of Joe diGenova and Victoria Toensing, experts on the applicability of both acts, to the punditry class.

9. Is Wall Street bullish on Turd Blossom? Well, I am, more than ever. Today, Black Friday, the Dow Jones rallied on the news that Scooter Libby, not Karl Rove, was the biggest catch in Fitzgerald’s net. The rumor is that Fitzgerald told Rove, “Boy, I’m gonna be watchin’ you.” That means Bush opponents still hope Fitzgerald might be able to get Libby to incriminate Rove, possibly as part of a plea bargain. But Fitzgerald indicated that he is not actively pursuing any other significant targets, suggesting that Rove may be free and clear. Whatever else happens, for the sake of the Republic, Libby and Rove cannot be allowed to correspond.

10. The hounds of Plame blame are on Robert Novak’s trail. They believe that the MSM, er, the American people have a right to know who his primary source was that named and identified Valerie Plame Wilson – and if he or she was part of Cheney’s Iraq cabal. If Novak had omitted her name from his July 14, 2003 column but published the rest, almost anyone could have identified her from her husband's biography posted on the EPIC website one month earlier, which could have been located with a simple internet search. If he had omitted only her CIA employment, he could not expose her husband's fraud and Plame's identity would have remained an open secret in Georgetown. And that is what irks the MSM - that Wilson's cover was blown, not Plame's. I still don't understand how Tim Russert, the Washington bureau chief for NBC, did not know what Marty Peretz's circle of friends knew before reading Novak's column - that Plame was "under cover, but not really."

11. President Bush is a man of action more than words. His response to the chronic corruption and irrelevance of the U.N. was to make a recess appointment of John Bolton. His response to the institutional disloyalty of the State Department was to promote Condoleezza Rice. His response to the chronic CIA sabotage of his agenda was to install Porter Goss at the helm. Bush is not likely to lead the long overdue investigation of the CIA. But Dick Cheney might be so inclined, especially after losing his esteemed assistant. This is a battle we cannot afford to postpone.

12. Dick Cheney has been the most effective vice president in my lifetime. His successes were made possible by Scooter Libby, who took a considerable pay cut to return to government work. According to co-workers and friends like Mary Matalin, he has served with dedication and honor during one of the most challenging, politicized periods in our nation’s history. I wish him and his family strength, love, faith, forgiveness and, if appropriate, a January 2009 pardon.